This case is not an ICWA case, but for those who work in this area, it is a familiar fact pattern, and one of the rare times the appellate court overturned the TPR based on lack of evidence. In addition, the press covered both this case, and did a second article on what it means to have “confidential” child welfare cases and provides a fair amount of nuance.

Case coverage

Confidentiality article

Opinion: 1 CA-JV 18-0322

We hold that a termination based on fifteen-months’ out-of-home placement requires the court to consider the totality of the circumstances throughout the dependency when determining whether the Department of Child Safety (“DCS”) made a diligent effort to provide appropriate reunification services, including whether DCS’s failure to act reasonably and diligently contributed to the circumstances causing the child to remain in out-of-home placement. We further hold that a request through the Interstate Compact on the Placement of Children (“ICPC”) is not required when the evidence does not support a dependency concerning the out-of-state parent.

Dad was not married to mom and did not know the child had gone into DCS care at birth. When he contacted the case worker, he was deemed immediately unfit.

Relating to Father, the primary cause of Melody’s out-of-home care was the court’s dependency finding in May 2015. At that time, no evidence showed that Father was an unfit parent, or that living with Father was contrary to Melody’s welfare. Melody had been in DCS’s custody since birth. Father contacted DCS when Melody was less than one month old. Nevertheless, without any investigation, DCS filed a petition alleging that Melody was dependent due to abuse or neglect as to Father.

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Despite Mother’s deception in telling Father that he was not Melody’s father, he called Mother’s husband, found out Melody was in DCS’s care, and immediately contacted DCS requesting a paternity test. The case manager told Father to contact the juvenile court, which he did. Father diligently complied with the ordered paternity test, appeared for the hearings, participated in parenting classes, and contested the allegations in the dependency petition.

DCS also required an ICPC (interstate compact on the placement of children) review for the child to be placed with her father in California–though again, there was no actual evidence of unfitness. This is a fact pattern we have dealt with in ICWA cases out of Arizona as well.

An ICPC is not required when evidence does not support a dependency as to the out-of-state parent. See In re Emoni W., 48 A.3d 1, 6 (Conn. 2012) (ICPC does not apply to out-of-state non-custodial parent); accord In re C.B., 116 Cal. Rptr. 3d 294, 302 (Cal. Ct. App. 2010); In re Alexis O., 959 A.2d 176, 182 (N.H. 2008). An ICPC is intended for out-of-state placement of a dependent child. A.R.S. § 8-548, art. II(d) (“’Placement’ means the arrangement for the care of a child in a family free or boarding home or in a child-caring agency . . . .“); A.R.S. § 8-548, art. III(a) (“No sending agency shall send, bring, or cause to be sent or brought into any other party state any child for placement in foster care or as a preliminary to a possible adoption [without complying with the ICPC].” (emphasis added)).

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Thus, when DCS discovers that a child in its care has an out-of-state parent, the regulation allows it—in addition to the conventional mechanisms it employs to investigate a parent—to request a courtesy check from the parent’s home state. Accord In re Emoni W., 48 A.3d at 11 (an agency can investigate an out-of-state parent without an ICPC). The ability to request a courtesy check, however, does not authorize DCS to hold a child in its care for an indeterminant amount of time simply because it lacks an ICPC approval. Unless DCS has a reasonable basis for believing the out-of-state parent is unfit, it must turn over the child to the parent.

The Court cited to Vivek Sankaran’s article on this very issue, Vivek S. Sankaran, Out of State and Out of Luck: The Treatment of Non-Custodial Parents Under the Interstate Compact on the Placement of Children, 25 Yale L. & Pol’y Rev. 63, 80 (2006).

By all accounts, dad was a good dad to his other children in California. The trial court went on to terminate parental rights regardless.

Reading this opinion should be infuriating. The visitation “plan” alone makes a person’s  heart rate climb to unhealthy levels on a plane, as my watch unhelpfully pointed out (“DCS falsely claimed  lied and said that “Father ha[d] failed to keep most of the weekly appointments for telephonic contact with the child.” ¶62 The foster mother reported that Father missed only five calls of the fifty days on which Father would have been scheduled to call in that period.”), and is a reminder of the absolute need for very good individual party attorneys in the child welfare system. This is a well written and well reasoned opinion by the Court of Appeals.